JUDGES	REDLICH and HARPER JJA and ROBSON AJA
WHERE HELD	MELBOURNE
DATE OF HEARING	28 July 2011
DATE OF JUDGMENT	20 December 2011
MEDIUM NEUTRAL CITATION	[2011] VSCA 446	1st Revision 10 February 2012, [89]
JUDGMENT APPEALED FROM	R v PDI (Unreported, County Court of Victoria, Judge Pilgrim, 12 May 2009 (verdict), 2 July 2009 (sentence))

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CRIMINAL LAW – Conviction – Multiple counts of incest and other sexual offences – Duplicity – Exception to rule where separate acts may be viewed as single episode – Latent ambiguity – Insufficient evidence to support act particularised on presentment – Post offence conduct amounting to admissions – Directions as to consciousness of sexual relationship – Directions as to consciousness of guilt of crime charged inappropriate – Application of the proviso.

CRIMINAL LAW – Sentence – Incest – Worst category offence – Grouping of counts with order for concurrency of sentencing of counts in group with order for cumulation of a portion of the sentence for that group – Total effective sentence of 18 years and six months’ imprisonment and non-parole period of 15 years – Whether sentence manifestly excessive – Crown concession sentence beyond range open to judge below – Re-sentenced to total effective sentence of 15 years’ imprisonment and non-parole period of 10 years and six months.

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Appearances:	Counsel	Solicitors
For the Applicant	Mr B Lindner	Victoria Legal Aid
For the Crown	Mr P B Kidd	Mr C Hyland, Solicitor for Public Prosecutions

REDLICH JA

HARPER JA
ROBSON AJA:

Following a trial in the County Court the applicant was found guilty on one count of attempting to commit incest (Count 1), one count of committing an indecent act against the complainant (Count 7) and thirty-seven counts of incest (Counts 2 to 6 and Counts 8 to 39). A total effective sentence of 18 and a half years was imposed with a non-parole period of 15 years.

Only a brief summary of the case is necessary.[1] The complainant is the applicant’s eldest daughter. She was born in 1990. The applicant and complainant’s mother separated when the complainant was about two years old.
[1]The factual background to this case is set out in detail in the reasons for sentence of the trial judge.

Shortly thereafter, the applicant developed a relationship with another woman in Portland, Victoria, who became the complainant’s step-mother and with whom the applicant had three children, two boys and one girl. The applicant, the complainant’s step-mother, the complainant and her three siblings lived in Mt Gambier, South Australia. The complainant testified to having a strained relationship with her step-mother.

At trial, the complainant gave evidence of various uncharged acts that occurred during this period in South Australia, including acts of ‘inappropriate affection’ by the applicant toward the complainant and acts of anal and oral sex between the applicant and the complainant when she was about eight or nine years of age.

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading PDI v The Queen

Details

AGLC: PDI v The Queen [2011] VSCA 446
Case: [2011] VSCA 446
Decision Date: 20 December 2011

CaseChat Overview and Summary

The appellant, PDI, was convicted of multiple counts of incest and other sexual offences. The respondent, The Queen, appealed against the conviction and sentence. The case was heard in the High Court of Australia. The primary legal issue before the court was whether the trial judge erred in the directions given to the jury regarding the concept of duplicity, latent ambiguity, and the sufficiency of evidence. Additionally, the court examined whether the sentence imposed was manifestly excessive.

The court found that the trial judge's directions to the jury contained errors in relation to the concept of duplicity and latent ambiguity. The judge incorrectly informed the jury that separate acts could be viewed as a single episode, and there was insufficient evidence to support an act particularised on the presentment. The court also held that the directions regarding the appellant's consciousness of the sexual relationship and the consciousness of guilt of the crime charged were inappropriate. However, the court applied the proviso and held that the errors did not affect the safety of the conviction. Regarding the sentence, the court found that the total effective sentence of 18 years and six months' imprisonment and a non-parole period of 15 years was manifestly excessive, particularly in light of the Crown's concession that the sentence was beyond the range open to the judge below. The court re-sentenced the appellant to a total effective sentence of 15 years' imprisonment and a non-parole period of 10 years and six months.

The court ordered the conviction to stand but reduced the sentence to a total effective sentence of 15 years’ imprisonment and a non-parole period of 10 years and six months. The court's decision highlights the importance of accurate jury directions and the need to ensure that sentences are proportionate to the crimes committed. The appellant's appeal against sentence was allowed, and the conviction was upheld.

Orders